The late Bruce Dixon, a Black Agenda Report co-founder and Managing Editor, provided this important analysis in 2018. We are told that the current composition of the Supreme Court with its conservative super majority is the sole doing of Donald Trump and the Republican Party. But Bruce revealed how the machinations of democratic senators Barack Obama and John Kerry created the court that democrats now revile.
We can’t blame Trump and the Republicans alone for the Supreme Court. Democrats had a big hand in it too.
The Supreme Court has been around as long as the Constitution itself, more than two centuries now. Since the Warren court of the 1950s, Republicans have been open about their intention to pack it with judges who will repeal birth control, civil rights, labor rights, minimum wages, environmental regulation and most of the 20th century. Democrats, if they were ever a party of the people, as opposed to another party of the elite, have had sixty-some years to craft their own strategy to thwart Republicans. Democratic elected officials have never done this because of course they have more in common with their elite Republican counterparts than they do with the unwashed masses who vote Democratic, and who can always be rallied with the cynical cry that only Democrats can save them from an evil Republican Supreme Court.
Back in 2005, the second President Bush nominated John Roberts as chief justice. The ranking Democrat on the Senate Judiciary Committee was the 2004 Democratic presidential nominee John Kerry. The most celebrated, widely quoted, and closely watched Democrat on the judiciary committee was the acclaimed constitutional scholar and freshman from Illinois, Barack Obama. These were the guys on point for Democrats that season.
John Roberts had a long history of hostility to birth control, voting rights, organized labor, black and brown people, anti-discrimination laws and anything else that might mitigate or restrain the rule of the rich to even the smallest degree. As a DC circuit court judge he “legalized” after the fact Bush’s illegitimate detention and torture at offshore black sites. As a private attorney, he represented mining companies defending the horrifically destructive practice of mountaintop removal, and he was part of the Bush V. Gore legal team which succeeded in letting the Supreme Court overrule the ongoing tally of votes in Florida and declare Bush the winner. Roberts was also a board member of the rabidly right wing Federalist Society, which seeks to overturn virtually all civil rights and environmental law, and all regulation of so-called “free markets” whatsoever.
Republican-leaning corporate media rejoiced, saying they were finally gonna get what they wanted. Environmental, voting rights and civil rights organizations sounded the alarm, but to little avail. Elected Democrats, their supposed champions, along with Democrat-leaning corporate media whined that there was insufficient evidence of Roberts’ rightward leanings to invest much effort in stopping his ascent to the court. Bush was a hugely unpopular president, and congressional Democrat candidates across the country were campaigning not on local issues, but against the president, a winning strategy for the following year as it turned out.
Ranking Democrats John Kerry and Barack Obama were urged to filibuster the Roberts nomination. They pretended to entertain the idea for a while but did not. Kerry and Obama failed to oppose the Roberts nomination in committee, where they could have imposed substantial roadblocks and opened an ongoing debate about the sinister role of the corporate-funded Federalist Society. They voted against the nomination on the Senate floor, where it made no difference, and John Roberts got on the Supreme Court with no serious opposition.
The next summer, in 2006 when Bush nominated Sam Alito to the Supreme Court the exercise was repeated. Samuel Alito had an even more balls-out reputation as an opponent of civil and human rights. Republicans exulted while lawyerly Democrats and their media mouthpieces claimed there were no smoking guns to tell whether Alito was actually the kind of judge Republicans claimed he was. Kerry and Obama, both lawyers of course were urged again to vigorously oppose the nomination in committee, and above all to make Alito’s membership in the Federalist Society a major point in opposing him and the entire wave of Republican judges it vets and spawns for local benches and the federal judiciary.
The Federalist Society was founded during the first term of Ronald Reagan in 1982, and immediately attracted lavish funding from a galaxy of right wing foundations, deep corporate pockets and wealthy individuals including the Walton Family Foundation, the Koch Brothers, the Scaife, Coors and Heritage Foundations. It swiftly established chapters in law schools across the country and became the go-to portal for young Republican lawyers on the make. The Federalist Society also has working groups of law school professors and groups where practicing attorneys and prominent jurists meet and associate with law students, and in which legal arguments for new corporate rights are developed, rehearsed and fine-tuned. For about a generation now, practically no Republican attorney has snagged a spot on state or federal judicial or prosecutorial benches, or appointed to federal agencies without the stamp of the Federalist Society on his or her resume.
As the two Democratic leaders of the Senate Judiciary, Kerry and Obama were urged again and again by civil rights, environmental groups, by labor unions – by all the advocacy groups which supposedly represent the Democratic party’s base voters, to stall, to delay and to vigorously oppose the Alito nomination. By the summer of 2006 it was clear that Democrats would take back the house in November, and possibly the Senate as well. This time, Kerry and Obama said they were considering filibustering the nomination. But they didn’t, and even worse, they refused to question Sam Alito on his association with the Federalist Society, which might have made that organization’s stranglehold on Republican prosecutorial and judicial nominees an ongoing issue.
After perfunctory questioning, Kerry, Obama and their committee they passed Alito out to the full Senate where he was confirmed with no significant opposition. To this day, the corporate-funded Federalist Society is still choosing a huge share of judges and prosecutors.
Let’s be clear… the courts in the US were never intended to be a small 'd' democratic institution. The founding fathers were quite open about their intention to insulate judges from the will of the electorate, even when only white men with substantial property were allowed to vote. From the nation’s beginning, its courts have always been an elite institution, staffed by and answerable to elites, not to the people. And the US elite is thoroughly bipartisan. Vigorous Democratic opposition to Federalist Society nominees a dozen years ago by leading Democrats, most notably by then senators Barack Obama and John Kerry might have kept dozens or hundreds of right wing judges off the bench and made it impossible for Trump to nominate his latest corporate mouthpiece. It didn’t happen because elite Democrats have far more in common with elite Republicans than they do with mere Democratic voters.
So the answer to Democrat excuse makers who sagely assure us that elections DO make a difference is yeah, sometimes they do, and sometimes they don’t. But fighting, resisting injustice, exploitation and oppression always makes a difference. Too bad that’s simply NOT what Democratic elected officials actually DO.
The late Bruce A. Dixon was a co-founder and Managing Editor of Black Agenda Report.
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